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Bill would facilitate religious divorce; some worry about constitutionality
by Eric Fingerhut
Staff Writer
Supporters of Maryland legislation that would require a Jewish man to give his wife a Jewish divorce before he could receive a civil divorce say they are confident their bill is constitutional and optimistic about its passage. But some in the Jewish community wonder whether the bill may breach the wall between church and state.
Known as a "get law," using the Hebrew word for divorce, the legislation would require the parties to the divorce to sign an affidavit, "under penalty of perjury," that they have taken "all steps ... to remove all religious barriers to remarriage by the other party."
The bill comes in response to the increasing visibility of the plight of agunot, or chained women. For a couple to divorce under Jewish law, a man must grant a get to a woman. Without it, a woman may not remarry in a religious ceremony.
The bill is backed by the Maryland Jewish Alliance, the coalition that lobbies on behalf of the Washington and Baltimore federations and community relations councils.
The alliance's David Conn, who also is the Baltimore Jewish Council deputy director, said the legislation would "complement what the community is doing" to help agunot.
While the bill may "intersect with religion," he said, it "would not excessively entangle" the two.
"If we viewed this bill as a breach [of the wall between church and state], we'd never support it," said Conn. "Given the legal analysis and the terrible ... problem, we're strongly in support."
Conn cited a letter that the bill's co-sponsor, Del. Sandy Rosenberg (D-Baltimore City), received from the state attorney general's office in response to a request to examine the legality of the proposed law.
That missive, from Kathryn Rowe, Maryland's assistant attorney general, states that while "the proposed legislation presents a substantial issue under the Establishment Clause of the First Amendment, it would likely be upheld if challenged."
The document argues that the law has "multiple secular purposes," such as promoting "the possibility of new family formation by removing voluntarily maintained barriers to remarriage" and protecting women from "coercion in negotiations related to their divorce."
Rowe also noted that the proposed legislation does not "contain any explicit reference to the religious practices of Orthodox Judaism that could be taken as a governmental endorsement," nor does it "incorporate into civil law any aspect of Jewish religious practice."
She writes that the bill avoids "excessive entanglement" with religion because "it leaves to the parties involved [to decide] whether the affidavit is to be required," and "where it is required, the court need not adjudicate matters of religious doctrine."
"It need only note whether the required affidavit has been filed and consider evidence, if presented, of a knowingly false statement," states the letter.
A similar bill has been on the books in New York state since 1982. A state court rejected a legal challenge to that legislation about a decade ago.
This is not the first time the "get bill" has come before Maryland legislators. Conn said it was first proposed in 1997 and passed the Senate in 1999, but foundered in the House amid concerns that the legislation would have unintended consequences on Catholic annulments. While that problem was corrected, the legislation did not make it out of committee the next year and has not been proposed since.
But in the past year, two cases of agunot have garnered publicity in the Free State. One involves Sarah Rosenbloom of Baltimore. Her ex-husband, Sam, has denied her a get in the six years since their civil divorce because, he said last year, he is angry that she has refused to apologize for lodging criminal allegations - which were later dropped - against him.
The New York-based Organization for the Resolution of Agunot has held periodic protests outside Sam Rosenbloom's Gaithersburg house as a way to apply social pressure on him and bring attention to his ex-wife's plight.
The protests led to Rosenbloom proposing, and the City of Gaithersburg agreeing to, an ordinance last year restricting the gatherings.
The increasing visibility of the issue, said Conn, led Baltimore's CHANA: Counseling, Helpline and Aid Network for Abused Women and the Jewish Coalition Against Domestic Abuse, to approach the alliance and encourage it to make another attempt on the legislation.
Rosenberg said he expects to introduce the bill in the next week or two and sees the legislation as a question both of women's rights and religious freedom.
"We hope it will be seen as a religious freedom issue," he said, because it makes it possible for women to "marry and remain in [their] faith."
Without such a bill, "women have to make a choice if they wish to remain" practicing Orthodox Jews.
The bill's sponsor in the Senate, Sen. Lisa Gladden (D-Baltimore City), notes that while the Constitution supports a separation between religion and state, "it doesn't say we should turn a blind eye" when there is a "need" such as this one.
Conn and other supporters emphasize that the bill is "not a panacea" or "full solution" to the problem. First, the bill would not help any current agunot, or women whose husbands have already received a civil divorce and are still withholding a get. A man also could still refuse to supply a get simply by not agreeing to a civil divorce.
But it is an additional tool for women, said Agudath Israel of American Washington director and council Rabbi Abba Cohen, whose organization is backing the proposal.
"The rabbis have ... been working on this problem for 2,000 years," said Cohen. "They believe they have gotten to the point that no other options are available to them within the Jewish law to alleviate the suffering of the agunot" outside of secular legislation. In the Diaspora, "they don't have the same tools" of community pressure they did elsewhere, said Cohen.
As one tool, the Conservative movement has developed the "Lieberman clause," a portion of the ketubah, or marriage contract, signed by the couple that authorizes a beit din, rabbinical court, to order the husband to give his wife a get. The beit din also may annul the marriage. That solution has not been adopted by Orthodox authorities.
But one Jewish former state legislator believes the legislation is unwise and questions its constitutionality.
Sharon Grosfeld, a Democrat who served eight years in the House and four in the Senate before retiring this year, said the agunot issue is a "very big problem, bigger than most people realize," but that the "get bill" is a mistaken way to handle it.
"This is a religious law, and not a secular law," said Grosfeld, an attorney. "I don't think the government should have a role in trying to remedy a bad situation when that situation should be remedied by a religious institution."
Even if the law is ruled constitutional, Grosfeld said she still thinks it is a "dangerous way for religious groups to go" because it sets a precedent for the government to tell them how to practice their faith.
One Jewish women's group said it was still considering the pros and cons of the legislation and had not taken a position on it.
Sammie Moshenberg, director of Washington operations at the National Council of Jewish Women, said that while her organization is extremely concerned about the plight of the agunah, she noted the "church-state implications of the bill that basically ... [are] entangling government in a religious matter."
"We're weighing that against the ... aim of the bill to address this really horrible issue" of women prevented from remarrying, Moshenberg said.
Hadassah said it had no comment on the bill.
Md. Sen. Jamie Raskin (D-Montgomery County), who is also a professor of constitutional law and the First Amendment at American University in the District, is still deciding where he stands on the issue.
"It's a close call," he said, noting that the legislation does have a "secular purpose and effect ... to facilitate remarriage."
On the other hand, "it appears to be kind of an entanglement" of the state with religion, adding that one "can't use the government to resolve religious controversies."
As the only constitutional law professor in the State House, he said a number of his colleagues have asked for his opinion on the matter.
Susan Weinberg, the Jewish Community Relations Council of Greater Washington's president, acknowledged that the church-state issue is a complication. But, she believes that backing the bill does not undermine the Jewish community's stance against the mixing of religion and government in other areas.
"Legislators will see the difference," she said, once Jewish advocates explain "how they can vote for it without breaking the fire wall" between church and state.
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